This case arose because: 1) Yang Shiu Giun and four other persons separately considered Article 11 of the Pharmacists Act (hereinafter referred to as “the disputed Provision”) and the Letter of 1 April 2011 No. 1000007247 issued by the then Department of Health (before its reorganization), Executive Yuan (hereinafter referred to as “the disputed Explanatory Letter”) as applied by attached final judgments unconstitutional and applied for constitutional interpretation; 2) Judge Chien Chieng Ron of the Taiwan Taoyuan District Court Administrative Panel, while hearing case Chien-Tze No. 45 of the year 2012 regarding the Pharmaceutical Affairs Act, based on his reasonable belief considered the disputed Provision unconstitutional, and applied for constitutional interpretation in accordance with the intents of J.Y. Interpretation Nos. 371, 572, 590 and Article 178-1 of the Administrative Procedure Act. The Grand Justices decided that above applications should be accepted and subject to consolidated review. In accordance with Article 13 Paragraph 1 of the Constitutional Interpretation Procedure Act the Grand Justices notified the applicants and the relevant authority, the then Department of Health, Executive Yuan to appoint representatives and agents ad litem to attend an oral argument in the Constitutional Court on June 13, 2013, and invited expert witness to make statements.
The applicants Yang Shiu Giun and four other persons asserted that the disputed Provision violated the Principle of Proportionality and Principle of Equality, and the disputed Letter violated the Principle of Statutory Reservation and the Principle of Equality, and infringed people’s right of work as protected by the Constitution. Their reasons are, in brief, as follows: 1) The disputed Provision violates the right of work as protected by the Constitution: When the pharmacy where a pharmacist works does not open for business, the pharmacist may not support another pharmacy’s work because of the disputed Provision. The pharmacist’s right of work is infringed upon. 2) The disputed Provision does not have any exception, which violates the Principle of Equality: Other laws and regulations for various types of medical professionals just like the disputed Provision pursue public interests of national health. Although they also restrict the practice location to one, an approval system permits exceptions where support in another location is allowed because of joint consultations among medical institutions, invited house calls, emergency rescue etc. The disputed Provision has no exception at all, and obviously violates the Principle of Equality. 3) The legislative purpose of the disputed Provision is to ensure full-time pharmacists, to prevent a pharmacist from lending his license, and to achieve the administrative purpose of regulating pharmaceutical businesses. However, now that the national health insurance system and the practice division between medical doctor and pharmacist have been established, in coordination with the registration of medical professionals, the disputed Provision should be reviewed and revised. 4) The disputed Provision restricts the practice location of pharmacists; as a result, full-time pharmacists will work over time. License lending will become more popular, and people in rural areas will not receive professional pharmaceutical services. The purpose of ensuring the safe use of medicine by citizens will be more difficult to achieve. 5) Lack of pharmacists: According to relevant academic research, outpatient pharmaceutical services are currently still insufficient, resulting in full-time pharmacists working overtime and jeopardizing national health. 6) The disputed Explanatory Letter, requiring a medical person who is double qualified as pharmacist and nurse to practice at the same registered location, violates the Principle of Statutory Reservation and the Principle of Equality: a) The current restriction on multi-qualified medical professionals is without statutory basis and hard to control. On the other hand, if a medical professional currently possesses other professional licenses, he may freely choose his job (for example, a medical doctor is also qualified as a lawyer or an accountant). But those who have multiple medical licenses are subject to restrictions; this violates the Principle of Equality as protected by the Constitution. b) Multiple practice locations only increase traffic costs, the quality of provided professional service will not be comprised. c) The practice location of a multi-qualified medical professional is limited to the same location. Because there are requirements of equipment for registering a practice location by various medical professionals, only hospitals and clinics are simultaneously qualified for registrations of various medical professionals. It seems beneficial only to hospitals and clinics. In addition, the applicant Judge Chien Chieng Ron asserted that the disputed Provision violates the Principle of Proportionality and the Principle of Equality, and infringes upon people’s right of work as protected by the Constitution. His Honorable Judge’s reasons are, in brief, as follows: 1) The disputed Provision imposes an objective restriction on people’s freedom to choose an occupation, and infringes upon the right of work as stipulated in Article 15 of the Constitution: a) Freedom of occupation is necessary for a fulfilled and cultivated life and the development of a person’s dignity. A distinction should not be made as to the nature of occupations. They are all protected by the right of work under Article 15 of the Constitution. The freedom of occupation includes the freedom to choose an occupation and the freedom to exercise an occupation. By reference to the intent of J.Y. Interpretation No 584, within the scope of Article 23 of the Constitution, qualifications and other requirements for exercising certain occupations may be restricted by statutes or ordinances as expressly authorized by statutes. b) Restrictions on the freedom of occupation may have different permissible standards due to different contents. With regard to manner, time, location, counterpart or content when exercising one’s freedom of occupation, legislators may impose appropriate restrictions when necessary due to public interests. As to objective conditions required of people choosing an occupation, this refers to conditions for undertaking specific occupations, which cannot be achieved by personal hardworking. It should be imposed only for the protection of vital public interests. In any event, the method should be in compliance with the Principle of Proportionality. c) The disputed Provision restricting a pharmacist’s practice to only one location does not simply restrict the freedom of exercising an occupation. Rather, it objectively restricts the freedom to choose an occupation. The legislative purpose must be to pursue special vital public interests in order to meet requirements of the Principle of Proportionality under Article 23 of the Constitution. d) However, the disputed Provision restrains a pharmacist from supporting other locations. As a result, medical institutions which need the support of pharmacists will, due to cost consideration, borrow licenses from pharmacists for their practice, this will cause harm to national health and is not beneficial for the pursuit of public interests. 2) The statistics regarding pharmaceutical manpower by the competent authority are based on the number of registrations. However, the difference between the practicing number and the registered number is as high as 12700 persons. It is doubtful to claim that there is sufficient manpower of pharmacists in Taiwan. 3) The disputed Provision violates the Principle of Equality: a) The Principle of Equality is the foundation of all basic rights. When exercising public powers, the substantive equality of people’s legal standing must be safeguarded. It is required that same substantive matters should be treated in the same manner, and arbitrary differential treatment without reasonable justification is not allowed. b) Whether a legal norm meets the requirements of the Principle of Equality depends on, by reference to the intent of J.Y. Interpretation No 694, whether the purpose of such legal norm for differential treatment is constitutional, whether there is a certain degree of connection between the categorization and the achievement of the purpose of the norm. Therefore, all differential treatments must have a constitutional justification. c) Other medical professionals, whose nature, like pharmacists, emphasizes public interests of maintaining or promoting national health, are in principle subject to one single practice location, but the law provides statutory exceptions for approval. Furthermore, according to current statistics, the numbers of registered medical doctors and pharmacists are roughly equal, but there are far more practicing medical doctors than practicing pharmacists. However, under exceptional circumstances, medical doctors are permitted to practice in other medical institutions. Obviously, this constitutes an unreasonable differential treatment for pharmacists and violates the Principle of Equality.
The relevant competent authority, the then Department of Health, Executive Yuan states that: 1) Although the disputed Provision infringes upon people’s right of work, it does not violate the Principle of Proportionality and is still constitutional: a) According to the legislative reasons, the disputed Provision is designed to adopt necessary measures for coordinating and ensuring a system of full-time resident pharmacists who manage (supervise) business (factory) and operate pharmacies in person in order to ensure the safe use of medicine and to establish a comprehensive public health system, as well as to secure the people’s right of health under Article 157 of the Constitution. b) The practice of medical business is of high density, continuity, professional and technical activities. Based on the consideration of maintaining medical quality, current laws and regulations applicable to medical professions stipulate the principle that the registered practice location shall be limited to one location. c) In addition to disbursing prescription, the practice of pharmacists also undertakes the responsibility of administering medicine, including product management and supervision of manufacturing, the practice locations vary accordingly. Thus, they must work full-time in one location to strengthen their professionalism. d) The disputed Provision restricts a pharmacist’s freedom of occupation in terms of practice location. However, the legislative purpose is to ensure full-time pharmacists so as to achieve vital public interests of protecting the right of national health; the restrictive measure has a reasonable connection with the purpose and is necessary for the protection of public interests. It does not excessively restrict a pharmacist’s right of work and does not violate the Principle of Proportionality. 2) The disputed Provision does not allow pharmacists to support other places as otherwise permissible for medical professionals, considering the protection of national health: a) According to current relevant regulations, medical professionals must in principle exercise their profession at a single location. The purpose is to ensure proper application of medical resources. The exception is only applicable where there is manpower shortage and in emergency cases to help patients in critical situations. b) Given the subject matter of the pharmaceutical business, in terms of storage and management of medicines, the combination of practice location and risk management measures is necessary. c) The disputed Provision does not, as in the event of other medical professionals, allow pharmacists to support other places. This necessary measure was adopted in light of vital public interests for safe management of pharmaceuticals and safe use of medicine by people. 3) Once a pharmacist may support other places, it becomes hard to ascertain the real practice location so that there may be practice registrations without actual practice there. This will directly cause an unbalanced distribution of medical resources and a situation where it is difficult to control the distribution of manpower. Moreover, the handling cost of auditing national health insurance cost will increase. As a result, national health will be jeopardized. 4) Considering the distribution of all medical resources and emergency medical care, current practice has relaxed the application of the disputed Provision to flexibly allow pharmacists to practice in following exceptional cases: a) In the name of the drugstore, hospital or clinic where the pharmacist registers his practice, to provide pharmaceutical consultation to nursing homes or pension institutions. b) For the promotion of public health business and volunteer medical services, to participate in volunteer medical services of medical groups to dispense medicines. c) To disperse medicines in mobile medical services in mountain areas, isolated islands or rural areas where there is no practicing pharmacist. 5) The manpower of pharmacist is sufficient: a) According to statistics as of December 2012, there are 45000 pharmacists in Taiwan. According to the Evaluation Project of Pharmaceutical Manpower Development conducted by the National Health Research Institutes commissioned by the then Department of Health, Executive Yuan, the demand for pharmaceutical manpower by the year 2020 lies between 35986 and 36321. There is no lack of manpower. b) Prohibiting pharmacists from supporting other medical institutions or drugstores will not affect national health or right of medical treatment. On the contrary, it is helpful to enhance the quality of professional service by way of full-time pharmacists as mandated by the disputed Provision. 6) The disputed Provision does not violate the Principle of Equality: The constitutional Principle of Equality does not mean absolute, mechanical, formal equality. Rather, it protects the substantive equality of legal standing of the people. Based on the constitutional value system and legislative purpose, the legislature may take into account the different nature of regulated matters and thus provide for reasonable differential treatments. Unlike other medical professionals, the disputed Provision does not allow supporting other places. As such it is expected to ensure a sound and comprehensive system for pharmaceutical safety and management, to provide a stable and safe pharmaceutical service environment for the people. The disputed Provision is reasonable and does not violate the Principle of Equality. 7) Regarding the constitutionality of the disputed Explanatory Letter: a) Based on the principle that there may be various types of professions, but personality is indivisible, and in consideration of the public interests to ensure national health and safety of medical treatment, and to enhance medical professional quality, it is necessary to restrict the practice registration of medical professionals with multiple qualifications. b) According to the current legal system, the registered practice location of both pharmacists and nurses is limited to one only. Therefore, for a dual-qualified pharmacist and nurse, regardless whether he registers his practice under the qualification of pharmacist or nurse, his registered practice location is limited to one only without exception. c) If a pharmacist is also qualified for other medical professions, in view of the special nature of the pharmaceutical business, it is improper to exercise dual practice. As to the practice location, because he possesses dual positions to practice and therefore should be subject to multiple obligations and to all the laws and regulations applicable to the respective qualifications, under legal jurisprudence the stricter regulations of a pharmacist’s practice location should be applied, and it should be limited to the same single one. Therefore, it does not violate the Principle of Statutory Reservation.
This Yuan considered all the arguments and made this Interpretation. The reasons are as follows:
Article 15 of the Constitution provides that people’s right of work should be protected. Its content includes people’s freedom of occupation. If a law imposes obligations on people for certain occupations, it is a restriction on such freedom. Statutory restrictions on freedom of occupation are subject to loose or strict constitutional standards depending on their contents. With respect to exercising the freedom of occupation in terms of manner, time and location of working, legislators have stipulated that only in the case of pursuing public interests and where a restrictive measure is strictly necessary such restriction meets the requirements of the Principle of Proportionality under Article 23 of the Constitution. It has been reiterated by this Yuan as such (see J.Y. Interpretation Nos. 584, 649, 702).
The disputed Provision provides that “a pharmacist who has registered his practice shall practice at only one location.” It restricts a pharmacist to practice at only one location after his registration of practice, and is a restriction on the manner and location of a pharmacist’s practice. The legislative purpose of the disputed Provision is to promote the policy of full-time pharmacists and to prevent the illegal practice of license lending (see Legislative Gazette Vol. 67, No. 87, committee minutes p. 31). Ever since Article 102 of the Pharmaceutical Affairs Act was amended on 18 January 1993 and a system of practice division between medical doctors and pharmacists has been implemented, a pharmacist, based on his professional knowledge and skill, checks a medical doctor’s prescription to disperse medicine, and provides patients with proper medicine information, advice and similar services. The disputed Provision’s restriction of a pharmacist’s practice location to one is derived from considerations of public interest to ensure a perfect medicine management system, to properly use and distribute total medical manpower resources, and to protect the safe use of medicine by people. The purpose of such restriction by the legislature is justified, but it should not exceed the necessary extent by excessively restricting a pharmacist from exercising his freedom of occupation so that the Principle of Proportionality under Article 23 of the Constitution is complied with.
The disputed Provision restricts a pharmacist’s practice to one location. This helps to achieve the above legislative purpose. However, a pharmacist may by law practice various businesses (see Article 15 Pharmacists Act). Society has different expectations with regard to pharmacists practicing different businesses. Due to differing practice locations and scopes, it is possible to flexibly and effectively use the professional knowledge of pharmacists. In the case of volunteer medical services or in rural areas or disaster areas where there is lack of pharmacists, in cooperation with mobile medical services and to provide medicine consultation services to pension institutions, pharmacists’ support will not violate the above legislative purpose, and there is no necessity to have any restriction. In addition, in view of the current practice, the competent authority in the above circumstances flexibly interprets the disputed Provision and so allows under certain conditions. Obviously, it is necessary to have, under certain conditions, exceptions to the rule that the practice location of a pharmacist should be limited to one only. Where it is not against the above legislative purpose or it is needed for vital public interests or in case of an emergency, the disputed Provision generally prohibits pharmacists from practicing various pharmaceutical businesses in different locations without any necessary reasonable exception; as such it imposes unnecessary restrictions on pharmacists exercising their freedom of occupation, violates the Principle of Proportionality under Article 23 of the Constitution and contradicts the protection of right of work under Article 15 of the Constitution. The relevant authority should review and revise the disputed Provision within one year of the publication of this Interpretation at the latest. Otherwise, the disputed Provision shall lose its legal effect.
The way how medical services are provided by various medical professionals differs greatly in terms of professional and technological nature. In consideration of maintaining medical quality and protecting national health, legislators may enact different restrictions concerning manner, time and location of practice with regard to various medical professionals. Although the disputed Provision differs from other regulations for other medical professionals regarding the practice location, such difference is made by legislators in view of the different professional nature of pharmacists and other medical professionals and other relevant factors, it does not contradict the Principle of Equality under Article 7 of the Constitution.
It has been reiterated in this Yuan’s Interpretations (see J.Y. Interpretations Nos. 584, 659) that within the boundary of Article 23 of the Constitution, people’s freedoms and rights may be restricted by statute or by order as expressly authorized by statute. In the case of a medical professional possessing multiple practice qualifications for various medical professionals, with regard to restrictions of practice qualification, manner or location, involving restriction of people’s freedom of occupation and public interests of safeguarding national health, the legislature should provide for the same by statute or expressly authorize administrative agencies to promulgate supplemental orders so as to comply with the Principle of Statutory Reservation of Article 23 of the Constitution. The disputed Explanatory Letter specifies that “4. As regards a pharmacist simultaneously possessing the qualification of a nurse, he may separately apply for practice licenses in accordance with the laws of respective medical professionals, but the practice location of the dual-qualifications shall be limited to the same location.” However, the Pharmacists Act does not provide that if a person simultaneously possesses a pharmacist certificate and a nurse certificate, his practice location shall be limited to the same location. The disputed Explanatory Letter additionally imposes a restriction on people’s right of work without legal basis. It violates the Principle of Statutory Reservation and shall not be applied anymore from the publication date of this Interpretation.
One of the applicants argued that Article 37 of the Pharmacists Act and Annex 6 of Article 9 of the Criteria for the Establishment of Medical Institutions regarding the criteria for the establishment of Chinese medicine institution as applied by the Taiwan High Court Tainan Branch final judgment No. 12 of the year 2011 violated the Principle of Equality and the Principle of Statutory Explicitness; another applicant argued that Article 8 of the Nurses Act as applied by Kaohsiung Administrative High Court final judgment No. 606 of the year 2011 violated his right of work. However, in view of their arguments, they failed to specify how the above provisions violate the Constitution. These applications are inconsistent with Article 5 Paragraph 1 Subparagraph 2 of the Constitutional Interpretation Procedure Act and should be rejected in accordance with Paragraph 3 of the same Article. It is so noted here.
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＊ Translated by Chun-yih CHENG.